Should Gary McKinnon be extradited?

Not many people agree with me on this. Just looking through today’s papers I see I’m up against the formidable line-up of Boris Johnson, Peter Hain, Nick Clegg, and Sting.

No doubt I’m also in disagreement with many readers of this blog, for whom the recent judgement of the High Court may seem symptomatic of much that has been wrong with the British state over the last decade: a loss of common-sense decision-making, an unprecedented erosion of our liberties, and an unquestioning obedience to our American allies.

Wanting to extradite a vulnerable young man suffering from Asperger’s syndrome, who naively poked around military computer systems to satisfy his obsession with UFOs, and faces a possible life-sentence in a foreign prison, may also seem pretty unfeeling. So let me try to explain myself.

Of course I feel sympathy for the man, but that is not enough: this is not simply an emotional argument. Nor, despite the best efforts of indignant newspaper columnists and opportunistic politicians, is it a moral or a political one. It is a legal debate, and it is properly decided on legal grounds.

Those criticising the extradition have generally relied on three arguments, each of which the courts have considered at length:

That the Home Secretary should never have sanctioned the extradition. Section 93 of the Extradition Act 2003 “requires him to order the person to be extradited unless one of the specified exceptions applies, none of which is relevant to the present.”

That McKinnon’s syndrome leaves him too vulnerable to be tried, and potentially imprisoned, in the US. The legal argument is that extradition would breach his rights under Article 3 of the ECHR, and so the Home Secretary has a duty not to extradite him. The Court concluded that “a diagnosis of Asperger’s Syndrome manifestly fails to come within the type of conditions that engage Article 3.”

That McKinnon should be tried in the UK. The Court held that there were many reasons to prosecute in the US, not least “the location of witnesses and the location of real evidence, where the harm was done” and that “there is no reason for the Director of Public Prosecutions to seek to prevent his extradition by prosecuting him here and he is under no relevant duty to do so.”

I am no expert, but the judgements of the courts seem intelligent, considered and faithful to the law. Perhaps for this reason, there has been very little engagement in the media with the legal arguments but plenty of criticism of the outcome.

To those angry at McKinnon’s impending extradition, it is therefore worth asking what they would recommend instead. Should the High Court have put public pressure and personal pity before the honest interpretation of the law? Should the Home Secretary have ignored the clear procedure of the Extradition Act, or over-ruled the legitimate decision of the Court? Surely the answer is no.

Boris suggests that the Home Secretary’s inaction may prompt us to “wonder why we have elected politicians at all.” He already knows – we have elected politicians to represent the people in the production of legislation and the business of government, not to involve themselves in the administration of justice. If the law is to mean anything, it must remain the preserve of the judiciary, and, paradoxically, it must be followed by the courts even when it seems unjust. To put its interpretation in the hands of politicians, however good their intentions, and to throw cases open to be determined by the prevailing mood, is a dangerous and destructive step. Even in a case as difficult as McKinnon’s, we must resist its temptation.

UPDATE: Just to clarify my argument in the light of some comments below, none of this is to suggest that the Extradition Act is not in need of extensive amendment, perhaps affording more circumstantial discretion, accounting for medical conditions, and insisting on reciprocity from US authorities. My point is simply that politicians shouldn’t blame judges for correctly interpreting bad laws, or arbitrarily intervene in individual cases because of public pressure.